TORT REPORT OF CIVIL AND INSURANCE DECISIONS:

COA 2010 Minutes Aug. 6,
2010 (Nos. 748-764)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • Total number of decisions:  17
  • Published Decisions:  2 (750; 755)
  • Tort, Civil, Insurance, Workers Compensation: 
    • 749. Torts. Legal Negligence.
    • 750. Civil. Execution on judgment and SOL.
    • 752. Civil Procedure.  Dismissal for lack of prosecution.

Published Decisions:

750. Civil.  Writ of Execution on Judgment.
WADE (DAVID)
VS.
POMA GLASS & SPECIALTY WINDOWS, INC.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2009-CA-000204-MR
TO BE PUBLISHED
JEFFERSON

ACREE,
JUDGE: The appellant, David Wade, appeals from an opinion and order of
the Jefferson Circuit Court allowing Poma Glass & Specialty Windows,
Inc.,
d/b/a AGC Flat Glass North America to pursue collection of its
1991 judgment against him.1    The circuit court determined that the
limitations period applicable to judgments, Kentucky Revised Statutes
(KRS) 413.090(1), had not expired. For the reasons stated, we affirm.

The
issue in this case is a narrow one: how do we define “execution” as
that term is used in KRS 413.090(1)? In pertinent part, the statute
states the following actions shall be commenced within fifteen (15)
years after the cause of action first accrued:
(1) An action upon a
judgment or decree of any court of this state or of the United States,
or of any state or territory thereof, the period to be computed from the
date of the last execution thereon[.]

NonPublished Decisions.

749.  Torts.  Legal Negligence.
WARMAN (STEVEN E.)
VS.
HALLORAN (BRIAN P.)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND BUCKINGHAM (CONCURS)(SENIOR STATUS JUDGE)
2008-CA-001909-MR
NOT TO BE PUBLISHED
KENTON

ACREE, JUDGE: The appellant, Steven Warman, seeks reversal of the Kenton Circuit Court’s grant of summary judgment in favor of the appellee. The circuit court properly determined that no genuine issues of material fact exist and properly characterized the appellant’s malpractice claim as frivolous. Further, the circuit court did not abuse its discretion by denying the appellant’s motion for extension of time to respond to the motion for summary judgment. Therefore, we affirm.

752. Appeal dismissed for failure of brief to comply with CR 76.12(4)(c).  Not a pro se brief!
Civil Procedure.  Dismissal for lack of prosecution.
DANIEL (LAQUATA GASPARAC), ET AL.
VS.
GREEN (THOMAS), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
VANMETER (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2009-CA-000663-MR
NOT TO BE PUBLISHED
MAGOFFIN

CAPERTON, JUDGE: Laquata Gasparac Daniel and Roy Daniel (hereinafter “the Daniels”) appeal from the March 30, 2009, order of the Magoffin Circuit Court which dismissed the Daniels’ cause of action with prejudice for a lack of prosecution and adopted the recommended findings of fact and conclusions of law submitted by the special commissioner. After our review of the parties’ arguments, we decline to review the merits of said arguments, as the Appellants’ brief does not comply with CR 76.12(4)(c). Accordingly, we affirm the Magoffin Circuit Court. * * *

After our review of the parties’ arguments, we decline to review the merits of said arguments, as the Appellants’ brief does not comply with CR 76.12(4)(c).

First, the Daniels do not inform this Court as to whether the claimed evidence or theory which supports their case was ever presented to the trial court. The Daniels do not cite to the record where such evidence or theory was presented, nor do they address whether the claimed error was preserved for appeal.

It is the responsibility of the Appellants to provide this Court with citation to the record supporting their arguments and to present to this Court how the claimed error was preserved for appeal. CR 76.12(4)(c)(v). It is not the function of this Court to scour the vast record on appeal in order to plead the Appellants’ case for them.1    See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). See also CR 76.12(4)(c)(iv) and (v). It is also the responsibility of an appellant to ensure the record on appeal is complete and contains all of the evidence needed to facilitate appellate review, and in the absence of a complete record, we must assume the omitted portions of the record support the rulings of the trial court. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).

Accordingly, we decline to address these arguments as we are unclear if these arguments or the evidence were presented to the trial court or preserved for appellate review. See Jewell v. City of Bardstown, 260 S.W.3d 348, 350-351 (Ky.App.2008)(“The circuit court did not address any of these issues in reaching its decision. We only review decisions of the lower courts for prejudicial error, consequently, without a ruling of the lower court on the record regarding a matter, appellate review of that matter is virtually impossible.”) and Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App.1998)(“[A]n appellate court will not consider a theory unless it has been raised before the trial court and that court has been given an opportunity to consider the merits of the theory.”).

In light of the foregoing, we affirm the Magoffin Circuit Court.